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“Progress” in New York



The Reproductive Health Act and Expanding Abortion Rights

On January 22, the 46th anniversary of the historic Supreme Court case Roe v. Wade, New York Governor Andrew Cuomo signed into law the Reproductive Health Act (RHA). According to a statement on his website, the passage of this legislation is a fulfillment of his promise to “protect women’s reproductive rights by ensuring New Yorkers can make personal healthcare decisions and medical professionals can provide crucial services without fear of criminal penalty.”

In other words, the legislation codifies Roe v. Wade and the right to an abortion into New York state law.

After the RHA passed and was subsequently signed into law by Governor Cuomo, a baptized Catholic, pro-life supporters took to social media to express their outrage at what appears to be another blow for the movement. The details of the new law itself and the larger context of increasing pro-choice legislation nationwide both warrant these reactions.

The facts: the RHA allows abortions after 24 weeks if the mother’s health is at risk or if there is an absence of fetal viability. What’s key here is the language of “health,” since the previous law protected unborn children after 24 weeks except to save a mother’s life. RHA has repealed that standard in exchange for exceptions of “health,” which can be broadly interpreted by the courts (as it has been before) to include age and economic, social, or emotional factors.

Another change concerns the question of who may perform an abortion. The law states that “A health care practitioner, acting within his or her lawful scope of practice, may perform an abortion when, according to the practitioner’s reasonable and good faith professional judgment based on the facts of the patient’s case: the patient is within twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.”

Abortions can now be procured from nurse practitioners and physicians assistants in the state of New York; the previous standard was only licensed physicians.

The Reproductive Health Act will remove abortions from the penal code, too.

“The legislature finds that comprehensive reproductive health care is a fundamental component of every individual’s health, privacy and equality,” it reads. “Therefore, it is the policy of the state that: Every individual has the fundamental right to choose or refuse contraception or sterilization. Every individual who becomes pregnant has the fundamental right to choose to carry the pregnancy to term, to give birth to a child, or to have an abortion, pursuant to this article.”

It is no longer a misdemeanor to self-induce abortion after 24 weeks, nor is it a felony to provide one after 24 weeks; it used to be punishable by up to seven years in prison.

The RHA was passed by a margin of 38 to 24 by a Democratic-led state legislature.

So what has led us to this day?

As seats change on the Supreme Court and we continue to live under a Republican administration, pro-choice advocates fear that a conservative-majority Court might one day overturn the landmark 1973 Roe v. Wade decision in part or in whole. Should that happen, the legality abortion would once again become a question for the states.

In anticipation of that day, abortion advocates across the country are calling for the ossification of abortion-friendly laws in their states in order to preserve access to abortion services should federal guarantees be rescinded. New York and its new Reproductive Health Act is one such case.

What ought to be more concerning for pro-life advocates, however, is the larger trend of governors and other politicians calling for abortions to be protected by state constitutions; since changes to the NY state constitution require a popular vote and approval by consecutive legislatures, anything added to a constitution is very hard to remove. Governor Cuomo called for abortion rights to be constitutionally protected at his bill signing, as he has done before.   

“Today we are taking a giant step forward in the hard-fought battle to ensure a woman’s right to make her own decisions about her own personal health, including the ability to access an abortion,” he said. “With the signing of this bill, we are sending a clear message that whatever happens in Washington, women in New York will always have the fundamental right to control their own body. … That’s why we had to pass this law, to protect our state. And that’s why I believe we have to go even a step further and do a constitutional amendment.”

Similar rhetoric was recently employed by the governor of Virginia, Democrat Ralph Northam, when he spoke on January 30th about a new bill proposed in the Virginia legislature. The new bill would loosen restrictions on abortions during the third trimester of pregnancy and allow abortions to take place outside of hospitals for mothers in their second trimester of pregnancy.

Northam’s description of such late-term abortions was crystal clear; he was offering a defense of infanticide.

“When we talk about third-trimester abortions, these are done with the consent of obviously the mother, with the consent of the physicians, more than one physician, by the way,” Northam said. “And it’s done in cases where there may be severe deformities, there may be a fetus that’s non-viable. So in this particular example, if a mother is in labor, I can tell you exactly what would happen. The infant would be delivered. The infant would be kept comfortable. The infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and the mother. So I think this was really blown out of proportion.”

Up and down the East Coast, the abortion expansion movement seems to be gaining steam; a similar bill has been introduced in Rhode Island and more can certainly be expected in the future.

Indeed, the loud cheers which erupted in the New York Capitol may indicate that we are moving into a time in which the rhetoric of “rare abortions” and “painful choices” is fast disappearing, replaced by a bolder celebration of evil in the name of autonomy.

At the historic scene at the New York assembly, Gloria Steinem, perhaps unwittingly, captured the inherent contradictions of the moment best. “A woman’s power to decide whether she will give birth or not is the single greatest determinant of whether she is healthy or not, educated or not, works outside the home or not, and how long she will live,” she said, “This power has been taken away by patriarchy and racism, sometimes disguised as religion, yet it is our most basic democratic right. I’m thankful to Governor Cuomo and the New York State legislature for passing the Reproductive Health Act. It will codify Roe v. Wade in New York State law, guarantee women’s right to make decisions about our own bodies, and help create a future in which every child has the right to be born, loved, and wanted.” (emphasis added)

If the stakes were not as high as they really are, such a deep contradiction would be laughable. Unfortunately, “progress” in New York marches steadily on, with lives ever hanging in the balance.

 

Soren Hansen, a senior, is a proud and outspoken member of the Program of Liberal Studies. She is also pursuing a minor in Constitutional Studies. She can be reached at mhansen3@nd.edu.

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